The petition to reopen a claim for service connection for osteoporosis is granted.
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Citation Nr: 21063307
Decision Date: 10/13/21 Archive Date: 10/13/21
DOCKET NO. 19-22 735
DATE: October 13, 2021
ORDER
The appeal for a compensable rating for a right arm Muscle Group VIII injury is dismissed.
The petition to reopen a claim for service connection for osteoporosis is granted.
REMANDED
The underlying claim of entitlement to service connection for osteoporosis is remanded.
FINDINGS OF FACT
1. The appeal for a compensable rating for a right arm Muscle Group VIII injury was denied in a prior June 2021 decision of this Board. As a result, there remains no question of fact or law to be decided by this Board as relating to this claim, in turn meaning the Board has no jurisdiction to further consider this issue.
2. In a June 2011 rating decision, the local Regional Office (RO) denied the claim of entitlement to service connection for osteoporosis because there was no then current disability. The Veteran did not timely appeal that prior decision nor did he submit any new and material evidence within the one-year appeal period.
3. However, additional evidence received since that June 2011 decision is not cumulative or redundant of evidence considered in that decision and relates to a previously unestablished fact necessary to substantiate this claim.
CONCLUSIONS OF LAW
1. The Board having no further jurisdiction over the issue, the appeal for a compensable rating for a right arm Muscle Group VIII injury is dismissed. 38 U.S.C. § 7105; 38 C.F.R. § 20.104 (2021).
2. The June 2011 rating decision that previously considered and denied service connection for osteoporosis is final and binding based on the evidence then of record. 38 U.S.C. § 7105(c) (2006); 38 C.F.R. §§ 3.104(a), 3.156(b), 3.160(d), 20.200, 20.302, 20.1103 (2010).
3. But there is new and material evidence since that decision to reopen this claim. 38 U.S.C. § 7105(c) (2018); 38 C.F.R. § 3.156 (2018).
REASONS AND BASES FOR FINDINGS AND CONCLUSIONS
The Veteran served on active duty from October 1976 to June 2000.
This appeal to the Board of Veterans' Appeals (Board) is from an August 2016 rating decision of a Department of Veterans Affairs (VA) Regional Office (RO).
A hearing before the undersigned Veterans Law Judge (VLJ) of this Board was held in June 2021 regarding these claims, as well as concerning the issues of entitlement to an increased rating for the Muscle Group VIII injury of the right arm, for earlier effective dates for the award of service connection for Muscle Group VII injury of the right arm and Muscle Group X injury of the right leg, regarding the RO's revision of the assignment of bilateral factors due to clear and unmistakable error (CUE) in a July 15, 2011 rating decision, and still additional claims for service connection for prostate cancer and for sinusitis. The claim for an increased rating for the Muscle Group VIII injury of the right arm was denied in a separate Board decision with a panel of three judges in June 2021. The Board, therefore, does not have any further jurisdiction over this claim so is summarily dismissing it.
Moreover, the RO granted service connection for the Veteran's sinusitis in an August 2021 rating decision. So, if he disagrees with the initial rating and/or effective date assigned for this now service-connected disability, he must separately appeal these "downstream" issues. Grantham v. Brown, 114 F.3d 1156 (Fed. Cir. 1997). Thus, unless and until he does, the Board also does not have any further jurisdiction over this other claim.
The remaining claims will be decided by panels of three VLJs because at least two have taken testimony on these issues. Therefore, those remaining claims will be addressed in separate Board decisions once they are ripe for adjudication.
1. Entitlement to a compensable rating for a right arm Muscle Group VIII injury.
The Board may dismiss any appeal that fails to allege specific error of fact or law in the determination being appealed. 38 U.S.C. § 7105 (2018). The Board must have jurisdiction to adjudicate an appeal of an agency of original jurisdiction (AOJ) determination. See 38 C.F.R. § 20.104.
The appeal of the agency's determination on the issue of entitlement to an increased rating for the Muscle Group VIII injury of the right arm was denied in a prior June 2021 decision of this Board. No AOJ determination has been issued or appealed since that June 2021 Board decision. Consequently, there remain no allegations of errors of fact or law for appellate consideration with respect to this claim. Thus, the Board has no further jurisdiction over this claim and it resultantly is summarily dismissed.
2. The petition to reopen the claim for service connection for osteoporosis.
The RO previously considered and denied this claim in a June 2011 rating decision, finding there was no then current disability owing to osteoporosis. The Veteran was provided notice of that decision and of his appellate rights, but he did not appeal the decision or submit new and material evidence within one year of receiving notification of that decision. Therefore, that decision is a final and binding determination based on the evidence then of record. See 38 U.S.C. § 7105; 38 C.F.R. § 20.1103.
However, additional evidence received since that June 2011 rating decision includes evidence that is both new and material to this claim. See 38 C.F.R. § 3.156. Notably, VA treatment records now show a diagnosis of osteoporosis so confirm the Veteran at least has this claimed disease. This new evidence addresses the reason for the previous denial, that is, the required proof of a current disability, and it at least raises a reasonable possibility of substantiating this claim. See Shade v. Shinseki, 24 Vet. App. 110, 118 (2010). The credibility of this evidence is presumed for purposes of reopening this claim. See Justus v. Principi, 3 Vet. App. 510, 513 (1992). Accordingly, this claim is reopened and will be readjudicated on its underlying merits once it is further developed on remand.
REASONS FOR REMAND
1. Service connection for osteoporosis is remanded.
The Board cannot make a fully-informed decision on the issue of entitlement to service connection for osteoporosis because no VA examiner has opined on whether the Veteran's osteoporosis is related or attributable to his military service. Accordingly, a VA examination and opinion are needed to assist in making this important determination. McLendon v. Nicholson, 20 Vet. App. 79, 81 (2006); see also 38 U.S.C.A. § 5103A(d)(2); 38 C.F.R. § 3.159 (c)(4).
Furthermore, during his June 2021 hearing before this Board, the Veteran referenced having a private Disability Benefits Questionnaire (DBQ) showing the required correlation ("nexus") of a bone mineral deficiency with his service. The Board's initial review of the extensive record in this case, however, did not reveal any such DBQ and supporting medical nexus opinion. A private DBQ received in June 2017 from Dr. Bash was reviewed; however, it did not reference bone mineral density or osteoporosis and did not provide any nexus opinion. Therefore, the Veteran should submit a copy of this DBQ he referenced during his June 2021 hearing before this Board supporting the posited correlation between his osteoporosis and service.
Accordingly, these claims are REMANDED for the following action:
1. Ask the Veteran to submit a copy of the private DBQ that he cited during his June 2021 hearing before this Board tending to support his claim for service connection for osteoporosis.
2. Also schedule the Veteran for a VA examination concerning this claim for service connection for osteoporosis. The examiner must review the relevant evidence in the claims file including a complete copy of this decision and remand.
If the diagnosis of osteoporosis cannot be confirmed but the Veteran's has symptoms causing functional impairment of his earning capacity, then the examiner should for all intents and purposes consider them a ratable "disability" in providing the opinion(s) below.
The examiner is asked to provide a response to the following:
1) Is the current osteoporosis at least as likely as not related or attributable to the Veteran's military service, including when considering an August 1999 service treatment record (STR) from the podiatry clinic indicating an X-ray of his right foot revealed diffuse osteopenia?
2) Are osteopenia and osteoporosis the same as osteomalacia, the latter being listed as a chronic disease under 38 C.F.R. § 3.309?
Provide rationale for the opinions.
Although independent review of the claims file is required, the examiner's attention is specifically directed to the following evidence: a) a notation of hypocalcemia in December 2006 VA treatment records; a December 2011 DEXA scan showing osteopenia and subsequent scans; an October 2012 radiology report showing mild osteoporosis of the left knee; and an August 2016 VA treatment record showing a diagnosis of osteoporosis.
KEITH W. ALLEN
Veterans Law Judge
Board of Veterans' Appeals
Attorney for the Board A. Rocktashel, Counsel
The Board's decision in this case is binding only with respect to the instant matter decided. This decision is not precedential and does not establish VA policies or interpretations of general applicability. 38 C.F.R. § 20.1303.